S. S. v. Economical Mutual Insurance Company, 2017 CanLII 70686

Date: 2017-10-12

Tribunal File Number: 17-002867/AABS

Case Name: 17-002867 v Economical Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

S. S.

Applicant

and

Economical Mutual Insurance Company

Respondent

MOTION DECISION

Adjudicator: Terry Hunter, Vice Chair

Appearances:

Applicant: S. S.

For the Applicant: Marinus Lamers, counsel Greg Wilson, Observer Christine Gold, Law Clerk

For the Respondent: Shalini Thomas, counsel

Heard: Motion hearing by Teleconference: August 29, 2017

Overview

1The applicant’s motion is for an Order for a) The production of all documentation relating to the stoppage, acceptance, payment and subsequent denial of the applicant’s attendant care, housekeeping and home maintenance benefits. b) An order that the preliminary issue written hearing be conducted by an oral hearing.

Result

2The applicant’s motion is denied.

Submissions of the Parties

3The applicant takes the position on the motion that:

(a) The limitation period does not begin to run until the applicant discovered he was catastrophically impaired;

(b) Because the insurer paid the benefits in question notwithstanding their earlier denial they are now estopped from denying the benefit and the recovery of an overpayment;

(c) The respondent’s payment of benefits acts as a waiver of any prior limitation date.

4The applicant states for these reasons he is entitled to complete and un-redacted access to the accident benefit file of the respondent.

5The applicant further submits the number and complexity of the issues is sufficient to require and oral hearing.

6The respondent’s position on the motion is that:

(a) The applicant’s request for all documents in the possession of the respondent was already heard at the case conference and rejected by the adjudicator for being overly-broad, disproportionate and not reasonable or necessary. The respondent states the current request should be similarly rejected.

(b) The respondent rejects the need for an oral hearing stating the single- question preliminary issue has been re-worded by the applicant into five separate questions to transform the singular limitation period issue into one of factual and legal complexity where none exists.

Facts

7The applicant was injured in a motor vehicle accident on July 29, 2009 and brought application for statutory accident benefits from the respondent in accordance with the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996.

8By letter dated July 21, 2011, the applicant was advised by the respondent that no housekeeping or home maintenance benefit is payable for expenses incurred more than 104 weeks after the accident. By letter dated October 4, 2011, the respondent advised the applicant that attendant care benefits are not payable for expenses incurred 104 weeks after the accident.

9In September 3, 2014 correspondence the respondent advised the applicant he was considered to have suffered a catastrophic impairment. In this correspondence the applicant was advised that as result of the catastrophic designation attendant care benefits would now be available to him. He was advised further that housekeeping and home maintenance benefits were also available to him.

10The respondent after receipt of the necessary documentation paid attendant care, housekeeping and home maintenance retroactively to the date of catastrophic determination as set out in correspondence from the respondent dated October 9, 2015.

11On April 21, 2016 the respondent sent a letter to the applicant advising their letter of October 9, 2015 was incorrect with regard to his entitlement to attendant care and housekeeping and home maintenance. The respondent alleged the benefits had been paid in error and requested the applicant repay the amounts paid in error.

12Subsequent efforts by the applicant to have the benefits reinstated were not successful with a final denial communicated by letter December 15, 2016.

13May 5, 2017 an Application by an Insured Person for Auto Dispute Resolution was submitted by the applicant.

14A case conference was held on July 6, 2017. A preliminary issue in dispute was identified, specifically is the applicant statute barred from claiming attendant care, housekeeping and home maintenance benefits. It was ordered at the case conference that the respondent provide the adjuster’s redacted log notes from the date of loss to the date the applicant filed his application with the Tribunal. The case conference also set the date for a written hearing on the preliminary issue for October 19, 2017.

15On August 14 the applicant brought this motion before the Tribunal.

Reasons and Analysis

16The first issue I will address is whether the hearing should be written or in- person. The case conference adjudicator in what is described by the respondent as a lengthy case conference heard the oral submissions of the parties and found that the preliminary issue could best be determined through a written hearing. I agree with the respondent’s submission that all of the evidence to be relied on at the hearing is documentary and no witnesses are required to give evidence. I confirm that a review of the applicant’s motion submission supports this finding. In addition the legal arguments are based on jurisprudence and legislation which is best presented in written argument. The applicant stresses the complexity of the issues but in and of itself this does not lead to the conclusion an oral hearing is appropriate. Finally the written hearing format is a proportionate and efficient method to resolve the preliminary issue. I find the applicant has not persuaded me on the balance of probabilities an oral hearing is required.

17The next issue is the applicant’s request for what essentially is the entire accident benefit file of the respondent, un-redacted and void of any claim for privilege either litigation privilege or solicitor client privilege. This was the submission of the applicant at the case conference. Adjudicator Maedel found this request overly broad, disproportionate and not reasonable or necessary. I am now being asked to reconsider the adjudicator’s order. Apart from a restatement of the preliminary issue incorporating such elements as estoppel, waiver and detrimental reliance which are equitable remedies beyond the Tribunal’s jurisdiction, the applicant has not shown error in Adjudicator Maedel’s Order nor have I been directed to new facts or argument not raised at the case conference.

18The extensive nature of the applicant’s production request strikes as an attempt to discover a basis for the equitable remedies previously describe or to bolster the argument that the limitation should not run until the designation of catastrophic impairment is made. Discoverability is an approach taken in court actions and does not apply in the scheme of statutory accident benefits.

20The applicant further rests his production request on the acknowledgement and subsequent payment of the benefits in question as serving to restart the commencement of the limitation period. I was not directed to any jurisprudence in support of this proposition.

21The applicant also rests the production request on his request for an award under O. Reg. 664. If the applicant’s preliminary issue hearing is found in his favour the applicant will under the terms of the initial order have a resumption of the case conference to set a hearing date on the substantive issues and the award claim. The applicant will be able to advance the production requests to support the award claim at that time.

22I am aware that the parties may not have completed their submissions for the written hearing, holding them in abeyance pending my motion decision. If that is the case I can be contacted to revisit those timelines. If necessary, I would expect that the parties would consent to an amended timeline.